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Earlier this week Professor Leslie Gielow Jacobs, Director of McGeorge’s Capital Center for Law & Policy, was interviewed by KCRA’s Mike Luery about recent actions by the federal government to reclaim nearly $1 billion pledged to California for the state’s high speed rail project that was authorized by voters in 2010. You can find the full story here.

In the video, Professor Jacobs is quoted as saying:

On who has the upper hand the upcoming legal fight over the money: “Obviously, the people who have the money have more power than the people who don’t.”

What to expect in response to the Trump administration’s letter indicating the federal government would be rescinding the grant funding: “Certainly, I would imagine California is going to try to provide a response. The question would be ‘What does that look like?’ and then if the federal government says, ‘We’re not going to give you this money’ I would imagine we’re going to see a lawsuit.”

Professor Jacobs was also quoted in the article section of the news story, saying about the case being made in the letter from the Trump administration to California, “This is a contract law issue. … California has fallen so short of its commitments – that is materially breaching the contract – which is what would give the federal government the ability not to give the money.”

President Trump will address the nation tonight. If he takes legal action, it will likely be to declare a national emergency under the National Emergencies Act of 1976. The statute gives him wide leeway to decide what circumstances constitute an emergency. He will declare the emergency to take advantage of two additional statutes, 10 USC 2808 and 33 USC 2293, which would allow him to reallocate Department of Defense construction funds to build the wall.

Congress is the nation’s lawmaker, and is the one responsible for allocating funds to complete projects like the wall. These statutes allow the president to bypass Congress and reallocate funds that Congress has already appropriated, so long as those funds remain uncommitted to other projects. To use these statutes, the emergency the president declares must “require the use of armed forces,” so expect him to make that case in his speech as well.

Joe Mathews, who spoke at our Belote Lecture on Journalism in the Era of Fake News in January, does an annual “California Office Pool” on Fox & Hounds. He gives the background on it here, where you can also find the questions and his picks for what is now the 10th Fox & Hounds California Office Pool.

Joe says to “clip n’ save (or bookmark and save)” you picks, but I think it would be more fun to post my predictions here. That way if I get all of them right, no one can accuse me of changing my answers. I won’t repost Joe’s questions, you can go to his post on Fox & Hounds to see those, just my answers to them. Feel free to leave your picks in the comments section below.

A long and busy week means for a short post on the news because, well, it’s been a really hard week to keep on the news with. Why the long week you might ask? Well, the week started off with this:

And the week also included a lot of planning for next week’s California Initiative Review. So with all of that in mind, here’s the stories that jumped out at me this week. It is only a small coincidence that I found the first one today.

Jon’s take: When I was an undergrad at UC Berkeley, this is the study I dreamed of doing when I dreamed of pursuing a PhD. That said, I’m not all that surprised by these results. Most of the political psychology research I’ve read indicates that the more you are exposed to viewpoints that conflict with your own, the more your own viewpoints harden. I did find it interesting that the effect was more pronounced on conservative Twitter users than liberal ones. The follow up study that I’d like to see done after this is one where you put that tiny sliver of the electorate this is true swing voters and see if you can push them down the ideological scale – one way or the other – with these bots.

Here’s our rundown of the news we’ve been reading and thinking about this week. While we try to seek out stories that aren’t the main story line of the week, sometimes the big story is just unavoidable.

Jon’s take: Maybe it’s a good thing that Elon Musk is being forced to step from Chairman of the Board at Tesla. In terms of creativity and thinking about ways to approach major societal problems, I still think he’s a genius. That said, between his 420 tweet that got him and Tesla into this mess originally and now another tweet mocking the SEC after settling with them – both of which had a negative impact on Tesla stock – I’m inclined to think that he maybe shouldn’t be running the day-to-day of the company.

Molly’s take: A week long investigation is thorough according to key GOP senators on the confirmation vote for Judge Kavanaugh. Today, of course, Kavanaugh passed a symbolic hurdle and was moved forward to the next step of being the next Supreme Court Justice when the U.S. Senate voted to end debate on his nomination. As someone who has watched the hearings closely, Kavanaugh’s professionalism is concerning. Do we want someone so swayed by politics as the next “independent” judge on the highest court in the United States? 51 Senators said yes.

Whether or not Kavanaugh is confirmed, this is an important and eye opening experience. Watching Senators push through a rushed investigation to confirm a man accused of a heinous act is disheartening to say the least. More so, do I feel like we should look at the ABA’s Rules of Judicial Conduct… does he meet those standards?

Now, I feel as if I can only watch as he gets closer and closer to the highest bench, and politicians who led the outcry for a thorough investigation of Clinton’s emails, step back and call a week long investigation sufficient.

Capital Center for Law & Policy Director Leslie Gielow Jacobs and McGeorge Professor Clark Kelso were both recently interviewed by KCRA 3’s Vicki Gonzalez about the recent U.S. Senate Judiciary Committee hearing with testimony from Dr. Christine Blasey Ford and Supreme Court nominee Judge Brett Kavanaugh. Quotes from Professors Jacobs and Kelso are below. You can find the full report and video from KCRA here.

Professor Leslie Gielow Jacobs

“In a trial, this wouldn’t be appropriate. We’d have a jury that might be sequestered so they wouldn’t hear outside evidence. Here, it’s appropriate that all the voters hear this evidence and make a judgement about it, so that the Senators can take that into account.”

Professor Clark Kelso

“There are so many details that could be followed up on if there were to be a proper, relatively quick investigation. There are a lot of people who the FBI could talk to. There are details that could be further explored.”

If we’re being completely honest, the only story any of us were really following this week was the Senate Judiciary Committee hearing for Dr. Christine Blasey Ford and Judge Brett Kavanaugh, and today’s news that a new FBI probe of Kavanaugh has been ordered.

BREAKING: In reversal, Trump orders new FBI probe of Kavanaugh, says it must be "limited in scope" and last no longer than a week.

Jon’s take: It really has not been a good run for Elon Musk lately. First he angered shareholders by smoking marijuana on camera while recording a podcast with Joe Rogan. Now his tweet from last month is coming back to haunt him.

I’m trying to process why he would do something so stupid, just to amuse his girlfriend, and now potentially be on the receiving end of the harshest penalty the S.E.C. can render. Talk about harshing the vibe, man.

Jon’s take: I used to go to a lot more concerts than I do now. There’s a number of reasons for that, but one the biggest reasons was that I go sick of seeing the face value for a ticket, getting to checkout, and after service fees essentially paying twice the face value of the ticket. I got sick of giving Ticketmaster my money, and when I do go to concerts now I mostly go to venues like Ace of Spades here in Sacramento that use Eventbrite for ticket sales. Long story short, this article gave me a new crop of reasons to not be a fan of Ticketmaster. And serious props to the journalists at the Toronto Star and CBC News for some excellent investigative journalism.

Chris’s take: I respect Professor Campbell’s perspective on this pending legislation and so many other issues that he has offered his perspective on over the years. I enjoyed working with him while he was briefly in the State Senate and then as Director of the Department of Finance under Governor Schwarzenegger. He has served as the Dean at Haas School of Business at UC Berkeley and then as Dean of Fowler School of Law at Chapman University. What an amazing public servant.

I am particularly interested in this op-ed because I worked on the legislation that he write about – SB 826 (Jackson), which is pending final action by the Governor prior to September 30. And I agree with Professor Campbell about his point that California might try to impose its societal views on the rest of the country if it can impose requirements on out-of-state incorporated businesses. Why couldn’t California impose its labor laws or tax laws on foreign corporations, for example?

Molly’s take: ‘Another one bites the dust’ is the song that comes to mind when I check off all of the officials that President Trump has either fired, forced to resign, or had unexpectedly quit. It seems that Attorney General Sessions may be safe until after the midterm elections, but after that, one can only guess.

Trump stated that he doesn’t “have an attorney general.”

Well it seems to me that President Trump will be uprooting another position in the Executive Branch, and everyone on the Hill is expecting it. The question is when.

Molly’s take: After a fire-filled year, the U.S. Forest Service says the largest wildfire on record in California is 100 percent contained. All I can say, is ‘Thank You’ to the hardworking firefighters who are tirelessly working on putting out the fire. Over 720 square miles have been burned since July when the fire began.

As someone who has seen their previous homes burned by fires, this article hit me particularly hard. Memories of cutting grass around the family home and seeing scorch marks across the side of the garage were brought back. This year, my family was lucky, our home was not at risk. The same cannot be said for hundreds of families across California, including classmates and friends here at McGeorge, who lost their homes.

As we continue into the colder season, hopefully, we will stop smelling smoke and ash and prepare for another fire season next year.

Here’s what folks at the Capital Center for Law & Policy have been reading and thinking about this week. You can also hear an interview featuring McGeorge Professor, and Capital Lawyering Concentration Director, Dan Croxall on Capital Public Radio’s Insight with Beth Ruyak.

Leslie Gielow Jacobs

This is an interesting article about how human policy decisions outside the realm of greenhouse gas emissions exacerbate the effects of climate change. This author studied recent home building trends and noticed that homes were placed in the likely paths of hurricanes, which will be more frequent and severe with climate change. The research shows that development decisions should be made with the growing threats posed by climate change in mind.

This story started about two months ago with some excellent reporting by Matt Pearce, Richard Winton and David Montero about how MGM sued the survivors of the Las Vegas shooting last October. MGM “Sued survivors to claim immunity under a federal law passed in the wake of Sept. 11 that was designed to protect corporations from lawsuits after terrorist attacks. Experts said it was the first time such a lawsuit had ever been filed under the law.” The update to the story is that MGM is telling survivors that if they waive their legal notice that MGM will make a $500 donation in the survivors name to a charity that supports survivors or families of slain victims. It’s like the old saying goes: You can put lipstick on a pig, but it’s still a pig.

Here’s what we at the Capital Center for Law & Policy been reading and thinking about this week … aside from the Senate Judiciary Committee hearings for Judge Brett Kavanaugh. CNN has rundown of where he stands on the various issues he may face as a Justice on the United States Supreme Court – should he be confirmed – here. You can also find our conversation with Maggy Krell, Chief Legal Counsel for Planned Parenthood Affiliates of California, on yesterday’s episode of The CAP⋅impact Podcast. The New York Times also ran an anonymous op ed from someone inside the Trump administration.

Admittedly, this is an older story, but it’s one that I find myself constantly going back to think and talk about. I spend most of my work day looking at a computer screen and I also spend a good bit of time in the evenings and on weekends looking at my phone. I also have a family history of Macular Degeneration, so when I saw this study, let’s just say I was less than thrilled. I’ve since turned night-mode back on on my phone to reduce blue light in the evening.

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CAP⋅impact provides the information, advice and analysis you need to understand and shape the rules around you. CAP·impact is a project of the nonpartisan Capital Center for Law & Policy at McGeorge School of Law.

About this Blog

CAP⋅impact provides the information, advice, and analysis you need to understand and shape the rules around you. We provide all content for educational purposes only, and subject to our disclaimers. CAP·impact is a project of the nonpartisan Capital Center for Law & Policy at McGeorge School of Law.